A guardianship proceeding can be very stressful, time-consuming, and expensive.  If you have just been served with notice of a guardianship proceeding, you may be wondering, “What happens next?”  Below is a summary of the process of a typical guardianship proceeding after the filing of a Petition to Determine Incapacity and a Petition for Appointment of Guardian.  

Under Florida law, within five days after the Petition to Determine Incapacity has been filed, the court must appoint an examining committee.  The court must also appoint an attorney for the person alleged to be incapacitated.  The court-appointed counsel must represent the express wishes of the alleged incapacitated person.  The attorney representing an alleged incapacitated person may not serve as guardian or as counsel for the guardian, nor shall any of the examining committee members. 

  The examining committee consists of three members, one of whom must be psychiatrist or other physician.  The remaining members must be either: (a) a psychologist; (b) a gerontologist; (c) another psychiatrist or other physician; (d) a registered nurse or nurse practitioner; (e) a licensed social worker; (f) a person with an advanced degree in gerontology from an accredited institution of higher education; or (g) another person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advice the court in the form of an expert opinion. 

Each member of the examining committee must examine the alleged incapacitated person and submit a report within fifteen days after appointment.  The examination must include a comprehensive examination of the alleged incapacitated person, including a physical examination, a mental health examination, and functional assessment. 

Each committee member’s written report must include, to the extent possible, a diagnosis, prognosis, and recommended course of treatment, an evaluation of the alleged incapacitated person’s ability to retain her rights, the results of the comprehensive examination, any information provided by the family physician, a description of the extent of the person’s incapacity, if any, to exercise rights enumerated in Florida Statutes § 744.3215.  A copy of the three reports must be served on the petitioner and the attorney for the alleged incapacitated person within three days after the report is filed and five days before the hearing on the petition to determine incapacity.  

If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated, the court must dismiss the Petition to Determine Incapacity.  

After the examining committee is appointed, the court is obligated to set a date on which the Petition to Determine Incapacity will be heard.  The date for the hearing is supposed to be set no more than fourteen days after the filing of the reports of the examining committee members, unless good cause is shown.  The burden of proof in the hearing is on the petitioner.  During the hearing, the partial or total incapacity of the alleged incapacitated person must be established by clear and convincing evidence.  The fact that a person has been determined to be incapacitated in some way, or totally incapacitated, does not necessarily result in the appointment of a guardian.  The court must examine alternatives to guardianship and determine that no alternative to guardianship would sufficiently address the problems of the incapacitated person.  Guardianship is intended to be a last resort. 

Because the process to determine incapacity can take several weeks, there is a mechanism for the court to appoint an emergency temporary guardian.  An emergency temporary guardian should only be appointed if the court specifically finds that there appears to be an imminent danger, that the physical and mental health or safety of the person would be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.  

A guardianship case can be very stressful on not only the alleged incapacitated person, but on family members who may have different views on whether a guardianship is needed.  Florida law allows a competent adult to name a person to serve as their guardian in the event of a future Adjudication of Incapacity.  This is called a Declaration of Preneed Guardian.  This Declaration is something everyone should consider doing as they age, or if they believe their mental health is in decline.  A Declaration of Preneed Guardian can be filed with the clerk of the court, and the clerk of the court will produce it if a Petition for Incapacity is filed.  Production of the Declaration of Preneed Guardian constitutes a rebuttable presumption that the preneed guardian is entitled to serve unless found to be unqualified by substantial competent evidence.  

To learn more about guardianship, please contact Keith Wickenden at kwickenden@gfpac.com or call him at 239-514-1000. 

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Keith Wickenden is a shareholder of Grant Fridkin Pearson, P.A. and has practiced law since 1991. He has an AV rating from Martindale-Hubbell and is listed in The Best Lawyers in America. Keith has jury trial experience in a wide range of cases, both as plaintiff’s and defendant’s counsel.